February 02, 2018

Tomlinson on Legitimate Expectations

Is there a convincing theory of why legitimate expectations should be protected by administrative law? It has become almost de rigueur in recent years to suggest that there is not, and to suggest we need to do more theory to make up for this. This article follows the typical articulations of this ‘conceptual critique’ of legitimate expectations. In particular, it traces the arguments of Forsyth and Reynolds, both of whom suggest that the doctrine would be assisted by identification of some sort of ‘meta-value’, as this would offer useful guidance on controversial questions related to the doctrine. By sifting through each of the prominent explanations—found in both case law and scholarship—for the doctrine of legitimate expectations, it is shown how none of the explanations manage to remedy the critique. This article therefore suggests we need to revisit some of the assumptions of the critique. Namely, that there is a pressing need for the particular sort of theory scholars such as Reynolds and Forsyth propose; and there is a pressing need in this area for more theory. It is argued both of these assumptions are faulty. First, if we are to theorise about legitimate expectations then a value pluralist approach is preferable to the search for a meta-value commonly envisaged by those who advance the conceptual critique. Second, there is no pressing need to argue for more theory in administrative law. If anything, contemporary administrative law scholarship is dominated by a focus on both common law judicial principles and abstract debates: the debate around the conceptual critique is an artefact of that state of affairs. The pressing need is therefore not for more theory, but for an account of the practice of legitimate expectations.